72 N.J.L. 462 | N.J. | 1905
The opinion of the court was delivered by
The writ 6f error in this case brings up for review the conviction of Jerry Eosa upon an indictment charging him with the murder of one Demetrio Denofrio.
The first reason assigned for the setting aside of the conviction is that the trial court erred in ruling that a plea of autrefois acquit filed by the defendant did not set out the facts necessary to constitute that defence, and in sustaining t-he demurrer to that plea filed by the state. The plea was in the following words: “This defendant hereby pleads to the above indictment that he has been lawfully acquitted of the said offence charged in said indictment in that he was heretofore, at the April Term, 1904, lawfully indicted for the murder of one Benedetto Galante, who, by the evidence in said cause, was shot at the same time and place by the same
Other reasons upon which the conviction before us is attacked are rested upon alleged erroneous rulings of the trial court upon the admission and exclusion of evidence. It is first objected that the state was permitted to prove by two witnesses that the defendant, about three weeks before the homicide, exhibited a revolver to them, stating at the same time that there were a couple of his countrjunen that he had a grudge in for, and that if they bothered him he was going to shoot them. The ground of objection is that the time of the making of the statement was “too remote” from the date of the homicide, and further, that the defendant did not state that either of the two men against whom the threat was made was Denofrio. Why the time of making the statement was so remote as to render it incompetent we are not informed by
The second objection to the admission of evidence was that the court permitted one Buonoeore to relate a conversation had by him with one Conti, embodying a statement which Conti declared had been made to him by the defendant as to what the latter would do in case he was convicted of the murder. The conversation was alleged to have taken place at the second door of tire jail in which the defendant was then confined. According to the story told by the witness, he himself was then standing just outside the door, and Conti and the defendant were standing right by him, just inside the door. There were a number of other Italians standing about the door at the time. On his cross-examination the witness stated that the defendant did not say anything in reply to Conti’s statement, and that he (the defendant) was .not paying any attention to what Conti was saying. The contention is that the court should have 'suppressed this conversation, because it was manifest that the defendant did not hear it. That the evidence was competent if the defendant heard the conversation, cannot be controverted. In Donnelly v. State, 2 Dutcher 601, this court thus declared the rule: “When a matter is stated in the presence of a person which injuriously affects his rights, and he understands it, the statement and his repty, or silence, are both admissible.” Whether the defendant did hear the conversation or not was for the jury. lie was in a position where he might have heard it; his failure to make any reply is not conclusive proof that he did not. Nor is the statement of the witness that the defendant was not paying any attention to what Conti said conclusive upon the point; it was merely
It is also contended that the trial court erred in excluding the record of the acquittal of the defendant on the indictment for the killing of Galante. The ground upon which this contention is rested is thus stated by counsel in his brief: “The defendant had a right to offer the record in evidence to show that he was not the-person that killed Galante, and that proof would have corroborated the defendant’s denial” that he was guilty of the charge upon which he was then being tried. The fallacy of this contention lies in the assumption that the record would have shown that the defendant had not killed Galante. It would only have shown that the evidence produced on the trial of that cause had failed to satisfy the jury that the defendant had feloniously taken the life of Galante. As we have already pointed out, the acquittal, of itself, constituted no bar to the conviction of the defendant for the wrongful killing of Denofrio. Whether it would have been evidential of his innocence of the latter offence, if it had been shown to have been rested upon precisely the same evidence as that produced upon his trial for that offence, is a question which the case before us does not present, for no offer was made to show that such was the fact. The only question which is now presented is whether the record of his acquittal of the one offence — without more— was evidential of his innocence of the other, and this question must be answered in the negative.
It is further argued that the conviction should be set .aside for the refusal of the trial court to charge the following request, submitted on behalf of the defendant: “Where .a witness, when testifying on a former occasion respecting the same interview to which his evidence on this irial is now directed testifies differently, in an important incident, which he now narrates, that circumstance must be considered by the jury as affecting his credibility on the question as to whether they will believe the interview which he has testified
Other reasons assigned for the reversal of this conviction are directed at alleged errors existing in the charge of the court to the jury. Our examination of the charge leads us to the conclusion that the various instructions which have been made the subject of criticism by counsel contain no legal error. But one of these alleged errors presents a question of sufficient importance-to require discussion. Among the witnesses produced upon the part of the state was one Michael Buckino, who- was called to prove a confession of guilt made to him by the defendant. The testimony of this witness was that tire defendant, while they were both inmates of the, county jail, told him that he had shot both Galante and Denofrio; that at the time of the shooting he was in the company of a'man known in tire case as Frank; that he first shot Demetrio Denofrio and then Benedetto Galante; that then he branded this revolver to Frank, and that Frank put this revolver in Denofrio’s hind pocket.” From other evidence in the case it had been made to appear that shortly after the shooting there was found in the coat
Finding no error in any of the matters complained of, we conclude that the judgment under review should be affirmed.